Regina v Bazzi [1999] NSWCCA 346

New South Wales Court of Criminal Appeal CITATION : Regina v Bazzi [1999] NSWCCA 346 FILE NUMBER(S) : CCA 60686/98 HEARING DATE(S) : 27 October 1999 JUDGMENT DATE : 27 October 1999

Regina PARTIES : v Izac Bazzi JUDGMENT OF : Smart AJ at 1; Simpson J at 28

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/21/3113 LOWER COURT JUDICIAL OFFICER : Moore DCJ

COUNSEL : A: A M Martin R: R D Ellis SOLICITORS : A: T A Murphy R: S E O'Connor CATCHWORDS : Sentencing; gravity of using an offensive weapon (blood filled syringe) to prevent detention; sentence not excessive; sentence on assault charge exceeding maximum ACTS CITED : Crimes Act 1900, ss33B and 61 CASES CITED: R v Hamilton (1993) 66 ACrimR 575 R v King [1999] NSWCCA 16 DECISION : Appeal dismissed on use offensive weapon; Appeal allowed on assault charge

IN THE COURT OF CRIMINAL APPEAL

60686/98

SIMPSON J SMART AJ

WEDNESDAY, 27 OCTOBER 1999 REGINA v IZAC BAZZI JUDGMENT

1 SMART AJ: Izac Bazzi seeks leave to appeal against the severity of his two concurrent sentences, comprising a minimum term of one year ten months, and an additional term of two years for using an offensive instrument, namely a syringe to avoid detention and for assaulting Mrs Jenny Fletcher. 2 The minimum term of one year ten months allowed for two months pre-sentence custody. The judge started off with a minimum term of two years. 3 On 26 January 1998 the applicant went to Woolworths, Riverwood, and placed five small video cassettes down the front of his jeans and under his jumper. He passed through the cash register without paying for the cassettes, but having paid for other items. He was accosted by the manager but pushed him in the chest and ran away, being pursued by the manager and another employee. 4 The applicant was tackled and his head came into contact with the ground. He suffered cuts and abrasions. He was escorted back to the manager's office of Woolworths. Upon request, he produced the cassettes from his jeans. It was noted that he was in possession of a sealed syringe. The applicant requested to go to the toilet to which he was escorted by three male staff. He occupied a cubicle. He took the unused syringe from his pocket, broke the needle off and sucked some blood and water into it from his mouth. He was being escorted back to the office when he attempted to run away. When he was grabbed he produced the blood filled syringe and waved it at the staff. As staff surrounded him he continually threatened staff with the blood filled syringe. He said, inter alia, "I'll stick youse if youse come near me". By this means he was able to, and did, leave the Woolworths store. 5 He ran away with a number of staff chasing him. He approached a small stationary car and jumped into the car. Mrs Jenny Fletcher was sitting in the driver's seat. She had seen him waving an object at his pursuers. When he got into the car she could see a pointed object. It does seem that the syringe was not used in the assault and I proceed on that basis. Mrs Fletcher became very afraid. She got out of the car and ran to safety. 6 The applicant stated that he became tired and that is why he entered Fletcher's car. He had a lung condition and his injuries When asked if he had squirted blood at anyone, he agreed that he may have as he saw blood spatters on someone's shirt. 7 This short summary of the facts reveals two serious offences. Under s 33B of the Crimes Act 1900 the maximum penalty for the offence of using an offensive weapon to prevent lawful detention is twelve years. The maximum penalty for assault under s 61 of the Crimes Act 1900 is two years. 8 It is therefore immediately apparent that the judge erred when he sentenced the applicant on the assault charge to a minimum term of one year ten months and an additional term of two years. The judge proceeded on the basis that the maximum penalty for the assault charge was five years. He was so informed by the solicitor for the Crown. There was no dissent from the solicitor for the applicant. 9 The applicant's counsel attached weight in his written submissions to the judge's comment that when he looked at the objective features of each case, the assault matter was probably the more serious of the two offences. The comment was probably made as a result of the victim impact statement of Mrs Fletcher. There were no victim impact statements from the employees of Woolworths. 10 While it is right to take into account the effect on the victim, that is not the only consideration. The degree of criminality inherent in the offence is even more important. The legislature regards the offence of using an offensive weapon to prevent lawful detention as very serious. 11 One of the objects of s 33B, when it was introduced into the Crimes Act 1900 in 1989 was to provide protection to the police and others who lawfully detained those reasonably suspected of committing an offence. 12 The applicant not only used the offensive weapon but made dire threats as he brandished it. In R v Hamilton (1993) 66 ACrimR 575 this Court regarded offences against s 33B as extremely serious. The judge imposed the same sentence on both counts and he was conscious of the principle of totality. Error having been demonstrated in relation to the penalty imposed on the assault count, it is now this court's task to impose the correct sentence on each count and to consider the questions of totality, concurrency and accumulation. This I have done. However, it is necessary to note some further matters. 13 The applicant was born on 20 August 1969. He had a substantial criminal record starting in the Childrens Court in 1982 where he appeared each year from 1982 to 1986 on a range of dishonesty offences, failures to appear, a drug offence, and the offence of assault with intent to rob. The pattern continued when he became an adult except that there were more drug offences. However, he had not been sent to gaol. That occurred later in 1998 when he was punished for contravening an apprehended violence order and other offences. As at the date of sentence he had been in gaol on other matters. 14 The crimes the subject of the sentences under appeal were committed whilst the applicant was on a recognisance to be of good behaviour for two years entered into on 17 April 1997. The judge thought that the applicant had a strong subjective case. The material revealed that he has had a drug problem since he was aged fifteen, but with some breaks including one of four years. 15 Although of above average intelligence, he has always been vulnerable to peer pressure. He was sent in 1986 to be with his brother in Western Australia. For four years he apparently got on reasonably well as to drugs, but lapsed back into drugs on his return to Sydney. He did commit a number of offences while in Western Australia. 16 The break-up of a relationship much affected him and for a period he could not accept that his lady friend did not want to continue with him. 17 As we are engaged in the exercise of re-sentencing, I have paid particular regard to the report of 27 September 1999 of the AOD worker at the Industrial Training Centre, Long Bay Correctional Centre. That report stresses the applicant's remorse, his sense of shame, his depression and his desire to rehabilitate himself. He has acknowledged the connection between his substance use and his incarceration. 18 It does appear from the matters canvassed in the report that the applicant has never attended de-toxification or rehabilitation programmes, but he has had two periods on methadone treatment. He has attended Narcotics Anonymous at least seven times whilst at the Industrial Training Centre. 19 It is indeed a sad matter to see a young man, the applicant now being aged thirty, who has not made the best of his life due to his drug problems. 20 The judge gave the applicant additional credit for his plea of guilty as Ms Fletcher experienced extra stress each time the matter came before the Court and she did not have to give evidence. The judge found that the applicant was genuinely remorseful and genuinely desirous of rehabilitating himself. On this application we should accept those findings of the judge. 21 It is very serious to use a syringe filled with blood and water as the applicant did and thereby cause fear in the staff of Woolworths and prevent them doing their duty. The applicant moved through the store carrying the syringe. 22 The applicant urged that the sentences were manifestly excessive in any event and submitted that the appropriate sentence on the charge of using an offensive instrument to avoid lawful detention would be one comprising a minimum term of eighteen months and an additional term of eighteen months. It was submitted that a sentence comprising a minimum term of two years and an additional term of two years was simply too much. 23 The applicant submitted that the sentences imposed did not adequately reflect his developing maturity and the other subjective features. 24 Rehabilitation is of considerable importance in this case and would lead to a finding of special circumstances and a longer than usual additional term. 25 Counsel referred us to the decision in Regina v King [1999] NSWCCA 16. That was a Crown appeal and furthermore the difficulties in that case arose in a large measure from the alcoholic condition of the applicant and it appeared that at the time of the committing of the offence he was very much under the influence of alcohol. The Court has taken into account the offence of stealing on form 1. 26 Bearing in mind the principles of totality, the sentence imposed for the offence of using an offensive weapon to prevent lawful detention was correct, taking into account the pre-sentence custody. 27 I would grant leave to appeal. I would dismiss the appeal against the sentence comprising a minimum term of one year ten months and an additional term of two years for the offence of using an offensive weapon to prevent lawful detention. I would allow the appeal on the assault charge and substitute a fixed term of fifteen months commencing on 16 October 1998. That sentence is to be served concurrently with the other sentence. The reason why there is no additional term in respect of that sentence is because of the concurrency of sentences and the longer sentence on the other offence. 28 SIMPSON J: I agree. The orders of the Court will accordingly be as proposed by Justice Smart. **********